386
O'Connor, J., dissenting
give full effect to Penry's evidence under the first special issue because "deliberately" was not defined "in a way that would clearly direct the jury to consider fully Penry's mitigating evidence as it bears on his personal culpability." Id., at 323 (emphasis added). That is, the evidence had relevance beyond the scope of the first issue. Id., at 322.
We concluded that the second special issue, like the first, did not allow a jury to give effect to a mitigating aspect of mental retardation: the diminution of culpability. Id., at 323-324. The Court today makes much of our finding that the "only" relevance of Penry's evidence to the second issue was as an aggravating factor, see id., at 323. Ante, at 365. But in so doing, it takes our factual description of Penry's evidence as a "two-edged sword" out of context. The second special issue was not inadequate because the evidence worked only against Penry; it was inadequate because it did not allow the jury to give full effect to Penry's mitigating evidence. Penry, 492 U. S., at 323. Our discussion of the third special issue—whether the defendant's conduct was unreasonable in response to the provocation—also focused on the inability of a juror to express the view that Penry lacked "the moral culpability to be sentenced to death" in answering the question. Id., at 324-325. The point of Penry is clear: A death sentence resulting from application of the Texas special issues cannot be upheld unless the jurors are able to consider fully a defendant's mitigating evidence. Accord, id., at 355 (Scalia, J., concurring in part and dissenting in part) (The Court today holds that "the constitutionality turns on whether the [special] questions allow mitigating factors not only to be considered . . . , but also to be given effect in all possible ways, including ways that the questions do not permit").
C
Our recent cases are not to the contrary. In Boyde v. California, 494 U. S. 370 (1990), for example, the Court relied on two straightforward propositions to reject petition-
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